In Florida, a DUI charge (driving under the influence of alcohol or drugs) is normally going to be charged as a misdemeanor crime. While the Florida legislature continues to make minimum penalties for DUI harsher, jail time for a misdemeanor crime is limited to a maximum of one year and most people charged with any misdemeanor are not facing anywhere near that amount of jail time, if any. However, if a person has three prior DUI convictions, the state does have the option of charging the fourth DUI as a third degree felony. Third degree felonies carry a maximum penalty of 5 years in prison, and it is not uncommon for someone to go to jail or prison when charged with a third degree felony if he/she has a prior record.
In a recent DUI case south of Jacksonville, Florida, the state charged the defendant with felony DUI because the defendant had three prior DUI convictions. However, the state cannot use just any prior DUI conviction to justify the three prior DUI convictions necessary to charge felony DUI for the fourth DUI. There are restrictions with the use of prior DUI convictions. For instance, if the defendant was facing jail time, could not afford a lawyer and did not have adequate legal representation during the prior DUI case, that prior DUI conviction cannot be used as one of the three prior DUI’s necessary to make the fourth DUI a felony.
In this case, one of the defendant’s prior DUI convictions went all the way to the mid-1980’s. The criminal defense lawyer filed a motion to dismiss the felony DUI charge because the defendant indicated he did not have enough money to hire a criminal defense attorney back then, did not waive his right to a criminal defense lawyer and was not appointed a criminal defense attorney by the court for the prior DUI in the 1980’s. Because the prior DUI case was so old, the files were destroyed, and the state was not able to prove that the defendant either had a criminal defense lawyer when he was convicted of the prior DUI or waived his right to a criminal defense attorney in that case. Because the state could not prove the necessary requirements to use one of the the prior DUI convictions, the State was not permitted to charge the fourth DUI as a felony.